Unfair Labor Practice Proceedings, 8995-9000 [E8-3013]

Agencies

• Federal Labor Relations Authority

[Federal Register Volume 73, Number 33 (Tuesday, February 19, 2008)]
[Rules and Regulations]
[Pages 8995-9000]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-3013]



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Federal Register / Vol. 73, No. 33 / Tuesday, February 19, 2008 / 
Rules and Regulations

[[Page 8995]]



FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Part 2423


Unfair Labor Practice Proceedings

AGENCY: Office of the General Counsel, Federal Labor Relations 
Authority.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The General Counsel of the Federal Labor Relations Authority 
(FLRA) revises portions of its regulations regarding unfair labor 
practice (ULP) proceedings (Part 2423, subpart A). The purpose of the 
revisions is to clarify the Office of the General Counsel's (OGC) role 
during the investigatory stage of processing ULP charges consistent 
with the policies of the General Counsel, and to clarify certain 
administrative matters relating to the filing and investigation of ULP 
charges. Implementation of the final rule confirms and enhances the 
neutrality of the OGC before a ULP merit determination is made and 
returns the OGC to its core mission.

DATES: Effective Date: February 19, 2008.

FOR FURTHER INFORMATION CONTACT: Jill Crumpacker, Executive Director, 
at (202) 218-7945, FLRAexecutivedirector@flra.gov.

SUPPLEMENTARY INFORMATION: On December 21, 2007, the OGC of the FLRA 
published proposed modifications to the existing rules and regulations 
in subpart A of title 5 of the Code of Federal Regulations regarding 
the processing and investigation of ULP charges (72 FR 72632) (December 
21, 2007). The revisions clarify the neutral fact-finding role of the 
OGC in the investigation of ULP charges. The revisions encourage 
parties involved in a ULP dispute to work collaboratively to resolve 
the dispute, and consistent with the General Counsel's Settlement 
policy, clarify that the OGC will not be involved in any way in 
resolving parties' disputes until after a determination has been made 
that a charge is meritorious. At that time, the OGC will strongly 
encourage the use of Alternative Dispute Resolution (ADR) to work to 
resolve parties' ULP disputes and to avoid protracted litigation of ULP 
complaints. Should those efforts fail, the OGC will aggressively 
litigate any ULP complaint.
    In the Notice of Proposed Rulemaking published in the Federal 
Register, the OGC solicited public comment on the proposed rule for a 
period of more than 30 days. All comments have been carefully 
considered prior to publishing the final rule, although all comments 
are not specifically addressed below.

Sectional Analyses

    Sectional analyses of the revisions to Part 2423--Unfair Labor 
Practice Proceedings are as follows:

Part 2423--Unfair Labor Practice Proceedings

Section 2423.0
    This section is amended to provide that this part is applicable to 
any charge of an alleged ULP pending or filed with the Authority on or 
after February 19, 2008. The provision regarding applicability of this 
part to any complaint is deleted.

Subpart A--Filing, Investigating, Resolving, and Acting on Charges

Section 2423.1
    A majority of the comments received concern sections 2423.1, 
2423.2, 2423.7, and 2423.12 of the proposed rule and the role of the 
OGC in the resolution of ULP disputes prior to and after the filing of 
a charge and up until a merit determination is made by a Regional 
Director.
    Nearly all commenters stated that parties to a ULP dispute are best 
served by the resolution of their dispute at the earliest practicable 
opportunity, and that resolving ULP disputes early effectuates the 
purposes and policies of the Federal Service Labor-Management Relations 
Statute (Statute). Two commenters responded favorably to the regulatory 
revision. One commenter asserted that the rule change will result in 
more thorough investigations and, therefore, a better understanding of 
the parties' positions prior to attempting to use ADR processes. The 
commenter stated that this will result in better discussions when 
parties are initially contacted regarding settlement by the OGC after a 
decision to issue complaint has been made. Numerous commenters objected 
to limiting the OGC involvement in the resolution of ULP disputes until 
only after a decision is made that the issuance of a ULP complaint is 
warranted.
    As set forth in the Statute, the General Counsel's role is to 
``investigate alleged unfair labor practices'' under the Statute, 
``file and prosecute complaints'' under the Statute, and ``exercise 
such other powers of the Authority as the Authority may prescribe.'' 5 
U.S.C. 7104(f)(2). Consistent with this statutory mandate, with respect 
to alleged ULPs, the OGC has an investigatory role and a prosecutorial 
role in the enforcement of the Statute. This mandate governs the policy 
of the OGC in the processing of ULPs. Consistent with this mandate, the 
OGC's role should be focused on its core investigatory and 
prosecutorial responsibilities. That role should not, contrary to the 
suggestion of some commenters, be to bring about a ``win-win'' 
resolution during the processing of every ULP dispute regardless of 
whether the allegations are meritorious.
    Although the OGC has an investigatory and prosecutorial role under 
the Statute, consistent with the comments set forth above, the OGC 
recognizes the value in parties resolving their own labor-management 
disputes at the earliest stages. As stated in the final rule, parties 
are encouraged to meet and resolve ULP disputes prior to and even after 
filing ULP charges. Contrary to some of the commenters' assertions, the 
final rule does not prohibit the use of ADR prior to a merit 
determination; the final rule encourages the use of ADR by parties who 
are always free to resolve their dispute on their own or with the 
assistance of a third party. Nothing in the final rule prohibits or 
impedes the ability of parties to enter into a settlement prior to 
filing or during the processing of a ULP charge. Further, nothing 
prohibits or impedes parties from including requirements in their 
collective bargaining agreements that would mandate parties to make 
attempts to resolve their disputes prior to filing ULP charges--i.e., a 
negotiated pre-filing requirement. As stated in the final rule, and as 
noted by many of the

[[Page 8996]]

commenters, the purposes and policies of the Statute can best be 
achieved by parties to a ULP dispute working collaboratively.
    A few commenters asserted that OGC involvement in facilitating ULP 
disputes prior to and during the investigation of a ULP charge greatly 
assists parties in resolving their disputes. To the extent that the 
involvement of a third-party enhances the ability of parties to resolve 
their dispute, there are a number of resources available to parties, 
including the services of the Federal Mediation and Conciliation 
Service (FMCS), which offers labor-management dispute resolution 
mediation by skilled facilitators as well as programs to improve labor-
management relationships generally. The final rule urges the parties to 
a ULP dispute to be responsible for their relationship and the 
resolution of their disputes. This is consistent with the statement of 
a number of commenters that ADR works best when parties mutually agree 
to utilize such services to resolve their dispute.
    Through vigorous enforcement of the Statute, the OGC protects the 
rights of employees to organize, bargain collectively, and participate 
through labor organizations of their own choosing in decisions which 
affect them. In addition, the OGC encourages the amicable settlement of 
disputes between employees and their employers by urging parties to 
work collaboratively to resolve their ULP disputes prior to filing a 
ULP charge and throughout the processing of a ULP charge after it is 
filed. In addition, once a determination is made that the Statute has 
been violated, the OGC will actively work with the parties using ADR 
processes to resolve the parties' ULP dispute and actively pursue 
litigation where appropriate. These actions are wholly consistent with 
the Statute, and accordingly, the final rule as promulgated is the same 
as the proposed rule.
Section 2423.2
    The comments concerning this section are addressed in connection 
with section 2423.1 above. The final rule as promulgated is the same as 
the proposed rule.
Section 2423.3
    The final rule as promulgated is the same as the proposed rule.
Section 2423.4
    Numerous commenters responded favorably to the regulatory revision 
that provides for the inclusion of e-mail addresses in charges for all 
of the parties and witnesses. One commenter suggested modifying the e-
mail requirement to reflect that e-mail addresses for the Charged Party 
and the Charged Party's point of contact be provided only ``if known.'' 
This suggestion has been incorporated into the final regulation 
because, as noted by the commenter, not all Charging Parties will know 
the e-mail address of the Charged Parties.
    One commenter suggested inserting a requirement that a charge 
include the particular agent of the Charged Party that allegedly 
committed the ULP, as well as the specific setting--e.g., division, 
section, or department within an agency--where the alleged ULP took 
place, if the Charged Party is an agency. The commenter notes that at 
times the general nature of the information set forth in a charge 
against a large agency is insufficient for the Charged Party to take a 
proactive approach and conduct its own investigation into the 
allegations, and resolve the issue. The final rule adopts this 
suggestion.
    One commenter claims that this section now adds a new requirement 
that a party explain how the facts alleged violate the specific 
paragraphs of the Statute. It is noted that the requirement set forth 
in 5 CFR 2423.4(a)(5) is not a new requirement and was not revised in 
the proposed rule.
Section 2423.5
    This section is reserved.
Section 2423.6
    All of the comments on this section were favorable and pertained to 
the elimination of the 2-page limitation on charges filed by facsimile 
transmission. The final rule as promulgated is the same as the proposed 
rule.
Section 2423.7
    A number of comments were received regarding the role of the OGC in 
the resolution of a ULP charge prior to a merit determination. As 
addressed fully in connection with section 2423.1 above, under 5 U.S.C. 
7104(f)(2), the OGC has an investigatory and prosecutorial role in the 
enforcement of the Statute, and as such, it is consistent with the 
Statute to limit the OGC's efforts to fulfilling that role--i.e., 
turning the focus back to the core mission.
    As noted above, to the extent that the involvement of a third-party 
enhances the ability of parties to resolve their dispute, there are a 
number of resources available to parties, including the services of the 
FMCS, which offers programs, training and mediation involving labor-
management disputes and relationships. Under the final rule, the 
parties to a ULP dispute are always encouraged to work collaboratively 
to resolve their own dispute, taking a problem-solving approach, rather 
than filing a ULP charge. Once a ULP charge is filed, parties are also 
encouraged on their own to attempt to resolve their dispute while the 
OGC conducts its investigation of the facts and determines the merits 
of the charge. The final rule as promulgated is the same as the 
proposed rule.
Section 2423.8
    A number of commenters stated that the rule should include a 
sanction for the Charged Party in the event that a Charged Party does 
not cooperate in an investigation. Two commenters stated that the 
definition of what constitutes cooperation is too narrow. The final 
rule clarifies the long-standing practice that the failure of a party 
to cooperate during an investigation may result in a dismissal of the 
ULP charge by the Regional Director. To the extent that a Charged Party 
fails to cooperate in an investigation, the final rule continues to set 
forth that the General Counsel may issue a subpoena under 5 U.S.C. 7132 
for the attendance and testimony of witnesses and the production of 
documentary or other evidence. The final rule as promulgated is the 
same as the proposed rule.
Section 2423.9
    The final rule as promulgated is the same as the proposed rule.
Section 2423.10
    One comment was received regarding this section. The commenter did 
not oppose the revisions to this section. The final rule as promulgated 
is the same as the proposed rule.
Section 2423.11
    Some commenters favored the revision to Sec.  2423.11(a) providing 
that the Regional Director will notify all parties to a dispute of a 
decision to dismiss a ULP charge upon completion of the investigation. 
One commenter stated that this is a positive rule change that promotes 
neutrality and employs parties to take responsibility for their 
actions.
    A number of commenters expressed concern regarding informing a 
Charged Party of an OGC decision to dismiss a charge even where a 
Charging Party may withdraw the charge. These commenters uniformly 
claimed that this will disadvantage the Charging Party and will have a 
chilling effect on any settlement discussion that the parties

[[Page 8997]]

may be engaged in over the pending ULP charge. In this respect, one 
commenter stated that the proposed rule will remove the impetus of the 
Charged Party to enter into a settlement. According to one commenter, 
the current practice of allowing a Charging Party to withdraw a charge 
without notifying the Charged Party of a Regional Director's decision 
to dismiss the charge is a ``face-saving'' measure for the Charging 
Party. A few commenters also questioned whether the basis for the 
dismissal will be communicated to the Charged Party.
    The final rule ensures that both parties to the dispute are 
apprised of the result of the investigation, including the basis for 
the decision where requested, and maintains the neutrality of the OGC, 
as it is a neutral fact-finding investigator reporting the results of 
its investigation. As discussed above, the OGC's role is limited to 
investigating and prosecuting alleged violations of the Statute. In 
cases where an alleged violation of the Statute is not found, the OGC's 
processes and procedures are not intended to be a tool for parties to 
bring about a settlement of their underlying non-meritorious dispute or 
to provide either party with the opportunity to ``save face.'' It is 
recognized that labor-management disputes which do not rise to the 
level of a ULP are still serious, and that their resolution is critical 
to good labor-management relations and to an effective and efficient 
Government. These regulations, however, place the responsibility for 
resolving such disputes in the hands of the parties where they are more 
appropriately addressed.
    Some commenters expressed concern that if a decision is made to 
dismiss an otherwise meritorious charge on procedural grounds, then the 
parties may have a false sense that unlawful conduct is in fact lawful. 
As set forth above, parties will be apprised of the basis for a 
dismissal where requested. In addition, under the ULP processes and 
procedures, a party is always free to file a new charge once all 
procedural matters are resolved and where all of the other filing 
requirements, such as timeliness, etc, are met.
    The final rule as promulgated is modified as set forth above.
Section 2423.12
    A number of comments were received regarding the use of ADR after a 
decision to issue complaint has been made. One commenter asserted that 
waiting to address settlement of ULP charges until after a merit 
decision is made will result in more thorough investigations and, 
therefore, a better understanding of the parties' positions prior to 
attempting to use ADR. The commenter stated that this will result in 
better settlement discussions when parties are contacted regarding 
settlement.
    A few commenters expressed concern that the proposed rule providing 
for the use of ADR prior to the issuance of complaint will result in 
all meritorious ULP charges being settled even over the objections of 
the Charging Party, and that the OGC will no longer issue complaint and 
litigate such cases. The OGC will actively work with the parties using 
ADR processes to reach a satisfactory resolution that is consistent 
with the Statute, resolves the parties' ULP dispute, and obtains the 
same types of remedies and relief as would be appropriate if the 
complaint was litigated. The OGC will also continue to vigorously 
enforce the Statute, prosecuting unresolved violations through 
litigation. The final rule as promulgated is the same as the proposed 
rule with a minor editorial clarification.

Regulatory Flexibility Act Certification

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the General Counsel of the FLRA has determined that this 
regulation, as amended, will not have a significant impact on a 
substantial number of small entities, because this rule applies to 
federal employees, federal agencies, and labor organizations 
representing federal employees.

Unfunded Mandates Reform Act of 1995

    This rule change will not result in the expenditure by state, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100,000,000 or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This action is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act of 1995

    The amended regulations contain no additional information 
collection or record keeping requirements under the Paperwork Reduction 
Act of 1995, 44 U.S.C. 3501, et seq.

List of Subjects in 5 CFR Part 2423

    Administrative practice and procedure, Government employees, Labor 
management relations.

0
For these reasons, the General Counsel of the Federal Labor Relations 
Authority, amends 5 CFR Part 2423 as follows:

PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS

0
1. The authority citation for part 2423 continues to read as follows:

    Authority: 5 U.S.C. 7134.


0
2. Section 2423.0 and subpart A of Part 2423 are revised to read as 
follows:
Sec.
2423.0 Applicability of this part.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
2423.1 Resolution of unfair labor practice disputes prior to a 
Regional Director determination whether to issue a complaint.
2423.2 Alternative Dispute Resolution (ADR) services.
2423.3 Who may file charges.
2423.4 Contents of the charge; supporting evidence and documents.
2423.5 [Reserved]
2423.6 Filing and service of copies.
2423.7 [Reserved]
2423.8 Investigation of charges.
2423.9 Amendment of charges.
2423.10 Action by the Regional Director.
2423.11 Determination not to issue complaint; review of action by 
the Regional Director.
2423.12 Settlement of unfair labor practice charges after a Regional 
Director determination to issue a complaint but prior to issuance of 
a complaint.
2423.13-2423.19 [Reserved]


Sec.  2423.0  Applicability of this part.

    This part is applicable to any charge of alleged unfair labor 
practices pending or filed with the Authority on or after February 19, 
2008.

Subpart A--Filing, Investigating, Resolving, and Acting on Charges


Sec.  2423.1  Resolution of unfair labor practice disputes prior to a 
Regional Director determination whether to issue a complaint.

    The purposes and policies of the Federal Service Labor-Management 
Relations Statute can best be achieved

[[Page 8998]]

by the collaborative efforts of all persons covered by that law. The 
General Counsel encourages all persons on their own to meet, and in 
good faith, attempt to settle unfair labor practice disputes. To 
maintain complete neutrality, the General Counsel may not be involved 
with such settlement discussions with the parties prior to a Regional 
Director determination on the merits. Attempts by the parties to 
resolve unfair labor practice disputes prior to filing an unfair labor 
practice charge do not toll the time limitations for filing a charge 
set forth at 5 U.S.C. 7118(a)(4).


Sec.  2423.2  Alternative Dispute Resolution (ADR) services.

    The General Counsel provides ADR services under Sec.  2423.12(a) 
after a Regional Director has determined to issue a complaint.


Sec.  2423.3  Who may file charges.

    (a) Filing charges. Any person may charge an activity, agency or 
labor organization with having engaged in, or engaging in, any unfair 
labor practice prohibited under 5 U.S.C. 7116.
    (b) Charging Party. Charging Party means the individual, labor 
organization, activity or agency filing an unfair labor practice charge 
with a Regional Director.
    (c) Charged Party. Charged Party means the activity, agency or 
labor organization charged with allegedly having engaged in, or 
engaging in, an unfair labor practice.


Sec.  2423.4  Contents of the charge; supporting evidence and 
documents.

    (a) What to file. The Charging Party may file a charge alleging a 
violation of 5 U.S.C. 7116 by completing a form prescribed by the 
General Counsel, or on a substantially similar form, that contains the 
following information:
    (1) The name, address, telephone number, facsimile number (where 
facsimile equipment is available), and e-mail address of the Charging 
Party;
    (2) The name, address, telephone number, facsimile number (where 
facsimile equipment is available), and e-mail address (where known) of 
the Charged Party;
    (3) The name, address, telephone number, facsimile number (where 
facsimile equipment is available), and e-mail address of the Charging 
Party's point of contact;
    (4) The name, address, telephone number, facsimile number (where 
facsimile equipment is available), and e-mail address (where known) of 
the Charged Party's point of contact;
    (5) A clear and concise statement of the facts alleged to 
constitute an unfair labor practice, a statement of how those facts 
allegedly violate specific section(s) and paragraph(s) of the Federal 
Service Labor-Management Relations Statute and the date and place of 
occurrence of the particular acts, which includes the identity (name 
and title) of the all the individuals involved, as well as the specific 
agency entity (if applicable) within which the events took place; and
    (6) A statement whether the subject matter raised in the charge:
    (i) Has been raised previously in a grievance procedure;
    (ii) Has been referred to the Federal Service Impasses Panel, the 
Federal Mediation and Conciliation Service, the Equal Employment 
Opportunity Commission, the Merit Systems Protection Board, or the 
Office of the Special Counsel for consideration or action;
    (iii) Involves a negotiability issue raised by the Charging Party 
in a petition pending before the Authority pursuant to part 2424 of 
this subchapter; or
    (iv) Has been the subject of any other administrative or judicial 
proceeding.
    (7) A statement describing the result or status of any proceeding 
identified in paragraph (a)(6) of this section.
    (b) When to file. Under 5 U.S.C. 7118 (a)(4), a charge alleging an 
unfair labor practice must normally be filed within six (6) months of 
its occurrence.
    (c) Declarations of truth and statement of service. A charge shall 
be in writing and signed, and shall contain a declaration by the 
individual signing the charge, under the penalties of the Criminal Code 
(18 U.S.C. 1001), that its contents are true and correct to the best of 
that individual's knowledge and belief.
    (d) Statement of service. A charge shall also contain a statement 
that the Charging Party served the charge on the Charged Party, and 
shall list the name, title and location of the individual served, and 
the method of service.
    (e) Self-contained document. A charge shall be a self-contained 
document describing the alleged unfair labor practice without a need to 
refer to supporting evidence and documents submitted under paragraph 
(f) of this section.
    (f) Submitting supporting evidence and documents and identifying 
potential witnesses. When filing a charge, the Charging Party shall 
submit to the Regional Director, any supporting evidence and documents, 
including, but not limited to, correspondence and memoranda, records, 
reports, applicable collective bargaining agreement clauses, memoranda 
of understanding, minutes of meetings, applicable regulations, 
statements of position and other documentary evidence. The Charging 
Party also shall identify potential witnesses with contact information 
(telephone number, e-mail address, and facsimile number) and shall 
provide a brief synopsis of their expected testimony.


Sec.  2423.5  [Reserved]


Sec.  2423.6  Filing and service of copies.

    (a) Where to file. A Charging Party shall file the charge with the 
Regional Director for the region in which the alleged unfair labor 
practice has occurred or is occurring. A charge alleging that an unfair 
labor practice has occurred or is occurring in two or more regions may 
be filed with the Regional Director in any of those regions.
    (b) Filing date. A charge is deemed filed when it is received by a 
Regional Director. A charge received in a Region after the close of the 
business day will be deemed received and docketed on the next business 
day. The business hours for each of the Regional Offices are set forth 
at https://www.FLRA.gov.
    (c) Method of filing. A Charging Party may file a charge with the 
Regional Director in person or by commercial delivery, first class 
mail, facsimile or certified mail. If filing by facsimile transmission, 
the Charging Party is not required to file an original copy of the 
charge with the Region. A Charging Party assumes responsibility for 
receipt of a charge. Supporting evidence and documents must be 
submitted to the Regional Director in person, by commercial delivery, 
first class mail, certified mail, or by facsimile transmission.
    (d) Service of the charge. The Charging Party shall serve a copy of 
the charge (without supporting evidence and documents) on the Charged 
Party. Where facsimile equipment is available, the charge may be served 
by facsimile transmission in accordance with paragraph (c) of this 
section.


Sec.  2423.7  [Reserved]


Sec.  2423.8  Investigation of charges.

    (a) Investigation. The Regional Director, on behalf of the General 
Counsel, conducts an unbiased, neutral investigation of the charge as 
the Regional Director deems necessary. During the course of the 
investigation, all parties involved are afforded an opportunity to 
present their evidence and views to the Regional Director.
    (b) Cooperation. The purposes and policies of the Federal Service 
Labor-Management Relations Statute can best be achieved by the full 
cooperation of all parties involved and the timely

[[Page 8999]]

submission of all potentially relevant information from all potential 
sources during the course of the investigation. All persons shall 
cooperate fully with the Regional Director in the investigation of 
charges. The failure of a Charging Party to cooperate during an 
investigation may provide grounds for a Regional Director to dismiss 
the charge for failure to produce evidence supporting the charge. 
Cooperation includes any of the following actions, when deemed 
appropriate by the Regional Director:
    (1) Making union officials, employees, and agency supervisors and 
managers available to give sworn/affirmed testimony regarding matters 
under investigation;
    (2) Producing documentary evidence pertinent to the matters under 
investigation; and
    (3) Providing statements of position on the matters under 
investigation.
    (c) Investigatory subpoenas. If a person fails to cooperate with 
the Regional Director in the investigation of a charge, the General 
Counsel, upon recommendation of a Regional Director, may decide in 
appropriate circumstances to issue a subpoena under 5 U.S.C. 7132 for 
the attendance and testimony of witnesses and the production of 
documentary or other evidence. However, no subpoena shall be issued 
under this section which requires the disclosure of intramanagement 
guidance, advice, counsel or training within an agency or between an 
agency and the Office of Personnel Management.
    (1) A subpoena shall be served by any individual who is at least 18 
years old and who is not a party to the proceeding. The individual who 
served the subpoena must certify that he or she did so:
    (i) By delivering it to the witness in person;
    (ii) By registered or certified mail; or
    (iii) By delivering the subpoena to a responsible individual (named 
in the document certifying the delivery) at the residence or place of 
business (as appropriate) of the person for whom the subpoena was 
intended. The subpoena shall show on its face the name and address of 
the Regional Director and the General Counsel.
    (2) Any person served with a subpoena who does not intend to comply 
shall, within 5 days after the date of service of the subpoena upon 
such person, petition in writing to revoke the subpoena. A copy of any 
petition to revoke shall be served on the General Counsel.
    (3) The General Counsel shall revoke the subpoena if the witness or 
evidence, the production of which is required, is not material and 
relevant to the matters under investigation or in question in the 
proceedings, or the subpoena does not describe with sufficient 
particularity the evidence the production of which is required, or if 
for any other reason sufficient in law the subpoena is invalid. The 
General Counsel shall state the procedural or other grounds for the 
ruling on the petition to revoke. The petition to revoke, shall become 
part of the official record if there is a hearing under subpart C of 
this part.
    (4) Upon the failure of any person to comply with a subpoena issued 
by the General Counsel, the General Counsel shall determine whether to 
institute proceedings in the appropriate district court for the 
enforcement of the subpoena. Enforcement shall not be sought if to do 
so would be inconsistent with law, including the Federal Service Labor-
Management Relations Statute.
    (d) Confidentiality. It is the General Counsel's policy to protect 
the identity of individuals who submit statements and information 
during the investigation, and to protect against the disclosure of 
documents obtained during the investigation, as a means of ensuring the 
General Counsel's continuing ability to obtain all relevant 
information. After issuance of a complaint and in preparation for a 
hearing, however, identification of witnesses, a synopsis of their 
expected testimony and documents proposed to be offered into evidence 
at the hearing may be disclosed as required by the prehearing 
disclosure requirements in Sec.  2423.23.


Sec.  2423.9  Amendment of charges.

    Prior to the issuance of a complaint, the Charging Party may amend 
the charge in accordance with the requirements set forth in Sec.  
2423.6.


Sec.  2423.10  Action by the Regional Director.

    (a) Regional Director action. The Regional Director, on behalf of 
the General Counsel, may take any of the following actions, as 
appropriate:
    (1) Approve a request to withdraw a charge;
    (2) Dismiss a charge;
    (3) Approve a written settlement agreement in accordance with the 
provisions of Sec.  2423.12;
    (4) Issue a complaint; or
    (5) Withdraw a complaint.
    (b) Request for appropriate temporary relief. Parties may request 
the General Counsel to seek appropriate temporary relief (including a 
restraining order) under 5 U.S.C. 7123(d). The General Counsel may 
initiate and prosecute injunctive proceedings under 5 U.S.C. 7123(d) 
only upon approval of the Authority. A determination by the General 
Counsel not to seek approval of the Authority to seek such appropriate 
temporary relief is final and shall not be appealed to the Authority.
    (c) General Counsel requests to the Authority. When a complaint 
issues and the Authority approves the General Counsel's request to seek 
appropriate temporary relief (including a restraining order) under 5 
U.S.C. 7123(d), the General Counsel may make application for 
appropriate temporary relief (including a restraining order) in the 
district court of the United States within which the unfair labor 
practice is alleged to have occurred or in which the party sought to be 
enjoined resides or transacts business. Temporary relief may be sought 
if it is just and proper and the record establishes probable cause that 
an unfair labor practice is being committed. Temporary relief shall not 
be sought if it would interfere with the ability of the agency to carry 
out its essential functions.
    (d) Actions subsequent to obtaining appropriate temporary relief. 
The General Counsel shall inform the district court which granted 
temporary relief pursuant to 5 U.S.C. 7123(d) whenever an 
Administrative Law Judge recommends dismissal of the complaint, in 
whole or in part.


Sec.  2423.11  Determination not to issue complaint; review of action 
by the Regional Director.

    (a) Opportunity to withdraw a charge. If, upon the completion of an 
investigation under Sec.  2423.8, a decision is made to dismiss the 
charge, the Regional Director will notify the parties of the decision, 
including the basis of the decision, if requested, and the Charging 
Party will be advised of an opportunity to withdraw the charge(s).
    (b) Dismissal letter. If the Charging Party does not withdraw the 
charge within a reasonable period of time, the Regional Director will, 
on behalf of the General Counsel, dismiss the charge and provide the 
parties with a written statement of the reasons for not issuing a 
complaint.
    (c) Appeal of a dismissal letter. The Charging Party may obtain 
review of the Regional Director's decision not to issue a complaint by 
filing an appeal with the General Counsel within 25 days after service 
of the Regional Director's decision. A Charging Party shall serve a 
copy of the appeal on the Regional Director. The General Counsel shall 
serve notice on the Charged Party that an appeal has been filed.
    (d) Extension of time. The Charging Party may file a request, in 
writing, for

[[Page 9000]]

an extension of time to file an appeal, which shall be received by the 
General Counsel not later than 5 days before the date the appeal is 
due. A Charging Party shall serve a copy of the request for an 
extension of time on the Regional Director.
    (e) Grounds for granting an appeal. The General Counsel may grant 
an appeal when the appeal establishes at least one of the following 
grounds:
    (1) The Regional Director's decision did not consider material 
facts that would have resulted in issuance of a complaint;
    (2) The Regional Director's decision is based on a finding of a 
material fact that is clearly erroneous;
    (3) The Regional Director's decision is based on an incorrect 
statement or application of the applicable rule of law;
    (4) There is no Authority precedent on the legal issue in the case; 
or
    (5) The manner in which the Region conducted the investigation has 
resulted in prejudicial error.
    (f) General Counsel action. The General Counsel may deny the appeal 
of the Regional Director's dismissal of the charge, or may grant the 
appeal and remand the case to the Regional Director to take further 
action. The General Counsel's decision on the appeal states the grounds 
listed in paragraph (e) of this section for denying or granting the 
appeal, and is served on all the parties. Absent a timely motion for 
reconsideration, the decision of the General Counsel is final.
    (g) Reconsideration. After the General Counsel issues a final 
decision, the Charging Party may move for reconsideration of the final 
decision if it can establish extraordinary circumstances in its moving 
papers. The motion shall be filed within 10 days after the date on 
which the General Counsel's final decision is postmarked. A motion for 
reconsideration shall state with particularity the extraordinary 
circumstances claimed and shall be supported by appropriate citations. 
The decision of the General Counsel on a motion for reconsideration is 
final.


Sec.  2423.12  Settlement of unfair labor practice charges after a 
Regional Director determination to issue a complaint but prior to 
issuance of a complaint.

    (a) Alternative Dispute Resolution (ADR). After a merit 
determination to issue a complaint, the Regional Director will work 
with the parties to settle the dispute using ADR, to avoid costly and 
protracted litigation where possible.
    (b) Bilateral informal settlement agreement. Prior to issuing a 
complaint but after a merit determination by the Regional Director, the 
Regional Director may afford the Charging Party and the Charged Party a 
reasonable period of time to enter into an informal settlement 
agreement to be approved by the Regional Director. When a Charged Party 
complies with the terms of an informal settlement agreement approved by 
the Regional Director, no further action is taken in the case. If the 
Charged Party fails to perform its obligations under the approved 
informal settlement agreement, the Regional Director may institute 
further proceedings.
    (c) Unilateral informal settlement agreement. If the Charging Party 
elects not to become a party to a bilateral settlement agreement which 
the Regional Director concludes effectuates the policies of the Federal 
Service Labor-Management Relations Statute, the Regional Director may 
choose to approve a unilateral settlement between the General Counsel 
and the Charged Party. The Regional Director, on behalf of the General 
Counsel, shall issue a letter stating the grounds for approving the 
settlement agreement and declining to issue a complaint. The Charging 
Party may obtain review of the Regional Director's action by filing an 
appeal with the General Counsel in accordance with Sec.  2423.11(c) and 
(d). The General Counsel shall take action on the appeal as set forth 
in Sec.  2423.11(e)-(g).


Sec. Sec.  2423.13-2423.19  [Reserved]

    Dated: February 13, 2008.
Colleen Duffy Kiko,
General Counsel, Federal Labor Relations Authority.
[FR Doc. E8-3013 Filed 2-15-08; 8:45 am]
BILLING CODE 6727-01-P